News Sonia Sotomayor's Controversial Decisions: Examining Her Judicial Record

[LowlyPion]

... and her repeated resort to identity politics:

What resort to identity politics? I've not heard Sotomayor offer her identity as a Latino or a woman as an excuse for anything.

What I have heard is the Conservatives trying to paint her as an activist. But then they should be well acquainted with appointing activist Judges, if you put any weight to this article about Roberts in the New Yorker.

“Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin

Perhaps if you want to keep partisan politics off the Court you should have been guarding the door more closely when Roberts was up for confirmation?

 

[mheslep]

What resort to identity politics? I've not heard Sotomayor offer her identity as a Latino or a woman as an excuse for anything...

...I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.

is self-identification by race/ethnicity, not by itself a bad thing, but the statement empirically contains identity politics when made public official.

 

[russ_watters]

I appreciate the suggestion, but note lest it escape you too quickly, that my comments represent my thoughts, even if they are responses to the mindless ideologues of the right wing media. That is the nature of dialog after all.

I think this is a good point to pause and refer everyone back to the guidelines for posting on P&WA: https://www.physicsforums.com/showthread.php?t=113181

In particular:

Any counter-arguments to statements already made must clearly state the point on which there is disagreement, the reason(s) why a different view is held, and cite appropriate sources to counter the argument...
[not permitted]
Statements of a purely inflammatory nature, regardless of whether it is a personal insult or not.

In other words, your understanding of the purpose and guidelines of this forum are not correct. This is not a place for freeform rhetic and editorializing. You must make arguments that have verifiable sources/justifications in order for th things you post to be useful. Post of a purely rhetorical nature are not permitted.

I'm deleting the off topic "blathering", as one person put it. Keep the posting quality high.

 

[russ_watters]

What resort to identity politics? I've not heard Sotomayor offer her identity as a Latino or a woman as an excuse for anything.

1. Barack Obama used her identity as part of the reason for nominating her.
2. She used her identity as an argument for why she makes a good judge (not an excuse). She has since, due to pressure over her bias, quit the club she belonged to that was based on identity and where she made that argument.

Both of these are well publicized and have been discussed at length in this thread.

I think I posted this before, but its a long thread, so here again is a commentary about the identity politics of the situation:

Some of us thought the election of Barack Obama as president might signal a fading away of the old identity politics...

But the president himself has made identity politics front-page news with his selection of Judge Sonia Sotomayor as his Supreme Court nominee...

[The article then discusses statements by Sotomayor, Obama, and the context of the NH firefighters case]

http://www.cnn.com/2009/POLITICS/06/04/thernstrom.identity.politics/index.html?iref=newssearch

 

[mheslep]

...What I have heard is the Conservatives trying to paint her as an activist. But then they should be well acquainted with appointing activist Judges,

Judicial activism is about making social policy on the bench, inventing law on the bench, instead of simply applying the existing law as it was intended by its authors. A judge is not an 'activist' simply because his/her ruling runs afoul of the current leftist position. The linked article is a good case in point. It makes little comment about applicable law or the constitution. Instead, it takes Roberts to task on his background, on half a dozen political issues that the author finds telling: the du jour environmental issue, or the poor vs the rich, etc, and to hell with the law. That piece is demanding judicial activism.

if you put any weight to this article about Roberts in the New Yorker.

And no I do not.

 

[russ_watters]

Judicial activism is about making social policy on the bench, inventing law on the bench, instead of simply applying the existing law as it was intended by its authors.

I'll put a finer point on it: Judicial activism is a position of the left. The right favors constructivism*. These postitions are contained in/implied by the words "liberal" and "conservative" themselves.

*Just saying "conservative" is more common.

 

[mheslep]

I'll put a finer point on it: Judicial activism is a position of the left. The right favors constructivism. These positions are contained in/implied by the words "liberal" and "conservative" themselves.

I think 'favors' as you say is true, though there are certainly some issues where politicians, if not judges, on the right have favored and passed laws found to be unconstitutional. Flag burning comes to mind, where laws were passed in most (all?) states banning it, the US Congress (Republican at the time) attempted the same, but all of the above was struck down, finally so in United States v. Eichman (5-4) with none other than Antonin Scalia joining the majority opinion. Though I find flag burning detestable and worthy of all the ridicule I can muster, I don't think the 1st amendment can permit laws banning it, and dreaming up some constitutional interest by the state that allowed banning laws would have indeed been judicial activism.

 

[Ivan Seeking]

The fact is that the law is not always clear, which is why we need a Supreme Court. So by definition it is not always possible to interpret the law without in effect making law. IMO, this notion that SC justices are or could be completely unbiased - mere computers that spit out results - is naive to the point of being a deception.

That is also why we have nine justices that often disagree.

Her decision wrt the firefighters was based on existing law. It was actually a conservative decision. The SC then ruled against the existing law.

 

[russ_watters]

I think 'favors' as you say is true, though there are certainly some issues where politicians, if not judges, on the right have favored and passed laws found to be unconstitutional.

Politicians passing laws, certainly. Judges, I think you'll have more trouble.

Flag burning comes to mind, where laws were passed in most (all?) states banning it, the US Congress (Republican at the time) attempted the same, but all of the above was struck down, finally so in United States v. Eichman (5-4) with none other than Antonin Scalia joining the majority opinion. Though I find flag burning detestable and worthy of all the ridicule I can muster, I don't think the 1st amendment can permit laws banning it, and dreaming up some constitutional interest by the state that allowed banning laws would have indeed been judicial activism.

Certainly flag burning is a clear 1st Amendment right. It surprises me that the decision went 5-4, though I haven't read the reasoning. However, it is an example of a supposedly conservative leaning court deciding in a constructivist direction on a historically liberal issue, and with some party switching.

 

[russ_watters]

The fact is that the law is not always clear, which is why we need a Supreme Court.

Not always clear and not always objective. IMO, the larger of the two purposes is for the USSC to be objective. Theoretical the national stage makes for a tougher audience and more difficulty in accepting heavy bias.

So by definition it is not always possible to interpret the law without in effect making law.

I don't see how that follows. Though I use it, the term "legislating from the bench" isn't quite accurate since the court can't actually write a law or change the meaning of a written law. What an activist court does is change the way the constitution is interpreted and applied to a law it is reviewing. That's the point and that is what the court is supposed to avoid. It isn't so much legislating from the bench as it is amending the constitution from the bench.

IMO, this notion that SC justices are or could be completely unbiased - mere computers that spit out results - is naive to the point of being a deception.

I doubt anyone would suggest that it is possible for a justice to be completely unbiased, but I don't think it is too much to ask that a justice and a President appointing one not advertise their bias as their primary selling point.

Her decision wrt the firefighters was based on existing law. It was actually a conservative decision. The SC then ruled against the existing law.

That's not how it works, Ivan, since obviously every supreme court decision is based on existing law. But in this case, the laws in question were liberal in nature and the interpretation of the Constitution on which they were based is liberal in nature.

Affirmative action is a liberal issue and the idea of interpreting the Constitutional requirement for equal protection broadly is a liberal issue. The way AA is being done is unconstitutional and even goes against the words of Martin Luther King Jr himself. We do not live in a color blind society, we live in a society where it is written into our laws that the color of one's skin has to be considered when issuing promotions, hiring for jobs, accepting kids to college.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin...

Point blank: the firefighter advancement test was tossed out because the people who passed it were white. They were judged unworthy of promotion due to the color of their skin.

I'll go further: I think she knows it! The case was important and controversial and to me that demands a court decision. But she and her court chose not to issue a decision. Why? At the very best they were shirking their responsibility, and to me that sounds like passing the buck on an issue that they knew they stood on the wrong side of.

 

[Ivan Seeking]

She has been confirmed by the Senate: 68-31.

 

[Alfi]

Congratulations to her. I wish her the best in her new position.